Calif. tobacco case seen beating FDA at high court

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The U.S. Supreme Court gets its first major taste of tobacco this week.

Advertising lawyers said the case set for oral arguments-one in which the government seeks to overturn a lower court decision barring the Food & Drug Administration from regulating tobacco and imposing marketing and ad curbs-along with a Nov. 19 decision by a San Francisco appellate court, virtually guarantee a major decision by the high court affecting advertising.

"Clearly the tobacco advertising issue is going to be before the Supreme Court," said Dan Jaffe, exec VP of the Association of National Advertisers.

The FDA case to be argued poses major concern for ad groups because it could swiftly lead to cases that might affect far more than tobacco.

Among the regulations the FDA wants to institute is a ban on color and imagery in tobacco ads in magazines with greater than 15% readership by those under 18; limits on sponsorship of events and displays of brand images; and a variety of other restrictions on in-store displays and signage.


Though tobacco companies subsequently agreed to take down major outdoor signs that would otherwise have been limited, the FDA rules still would impose significant new restrictions. And, if ruled lawful, they could give the government avenues to pursue other industries, the ad groups contend.

A U.S. District Court judge in Greensboro, N.C., earlier overturned the FDA regulations; subsequently, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit said the FDA had no right to regulate tobacco.

The Nov. 19 decision in San Francisco, involving a Tacoma, Wash., Board of Health tobacco ordinance, could bring the question of ad restrictions to the court even more quickly, because the unanimous three-judge decision creates an immediate conflict between court decisions in various circuits on an identical issue.

A three-judge panel in the 9th Circuit ruled that Tacoma/Pierce County couldn't ban outdoor tobacco ads because the U.S. Congress had "pre-empted" state regulation of tobacco advertising.

That decision calls into question similar ordinances in Oakland, Calif., and Los Angeles, which have not been challenged on tobacco-related issues.


With similar three-judge panels in Chicago and New York having ruled the opposite way, the Tacoma case's greatest impact may be to create a conflict the Supreme Court will need to resolve.

Tacoma's city attorney said there would be no decision until this week on whether to appeal, but a request for the Supreme Court to act also could come from Chicago or New York.

Last week, New York merchants and media groups challenging a city ordinance were granted a temporary restraining order by a U.S. District Court judge, pending a trial on the ordinance's constitutionality.

Floyd Abrams, the New York attorney who won the Tacoma case and is challenging the New York ordinance, said no decision has been made about approaching the Supreme Court.

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